Court rulings will finally come this week. We will know about 2 major issues that remain before the Supreme Court and for which rulings are due. This is the week we will know how the Court will rule on Obamacare and on Eric Holder’s Justice Department suit against the State of Arizona. Those who watch the Court closely and comment about every nuance of question, comment, or even heavy breath, seem convinced that at least the individual mandate contained within the Affordable Care Act will be struck down by the Court. We’re not sure about their conclusion. If experience is any teacher, the Court is not likely to make broad decisions in relation to total constitutionality very often. We saw that last week when the Court ruled narrowly that ABC and Fox were not advised properly, in advance, of the FCC rule regarding indecent speech. Hence, the Court did not have to rule on the First Amendment implications of the case (a ruling both sides would have desired).
If the Court Strikes Down ACA
What happens if the ACA is completely struck down because the Court decides that the individual mandate cannot be separated from the Act and therefore the entire piece of legislation is unconstitutional? Even though, we believe it unlikely the court will rule in this manner, if it were to occur, it would signal the greatest victory for conservatives imaginable. It would completely repudiate the signature legislation of the current administration. If the ruling is “unconstitutional” everything returns to the way it was before Obamacare and a “do-over” is mandated by The Court ruling. Some believe that legislators would immediately take up “healthcare reform” and begin adding back provisions that are less draconian. We’re not sure of that prediction either. We believe that The Court is very unlikely to mandate that immediate action be taken by the Congress. There is no doubt that this issue is a political football and nightmare, really, for both sides. Inasmuch as the election is not far away, we believe that it is more likely that Congress would hem and haw (they are really good at that you know) until after the election. The Court ruling and The Act will be campaign issues, no doubt, but real action is not likely to come until the majority in each Chamber and the White House has been decided. If the Democrats take the White House, hold the Senate, and gain ground in the House, count on a minimally revised version of ACA to be passed. If, on the other hand, the Republicans gain the White House, hold the House, and perhaps even gain seats (or even control) of the Senate, then the legislation ultimately produced will likely be vastly different from what was originally passed. Some manner of reform will be high on the agenda of the winner in November, but the debate will be fueled by the Court ruling this week.
If the Court Upholds ACA
But, what if the Court upholds Obamacare? Again, we doubt that the Court ruling will allow for that for the same reasons described above. But if it is upheld, count on conservatives to demand their representatives repeal each and every word. Repeal is easier said than done. Though the rhetoric concerning the Court ruling will be deafening, don’t expect much action until after the November elections. Expect to hear much about having to “study” the ruling and decide what to do next. When you hear those words, read them, “we’re stalling until after the elections.” Also, expect the side that loses the Court decision to use “judicial activism” in their description of the ruling.
If the Court Invalidates Part of the ACA
So, what does happen if the Court rules that the individual mandate can be severed from the balance of the Act? We believe that this is the most likely Court ruling, and will create immediate chaos in Congress. Those who want to see repeal will immediately bring up all the “adverse selection” data that shows the legislation will cause the insurance companies to implode. And, those who want to keep it will cry, “Foul” that not every American will be included and therefore have “medical insurance.” We will not be surprised if, after such a high-profile Supreme Court ruling, time for “study” is again trotted out. Both sides are depending on the November election to grant them a majority, if not a mandate, to advance their own agenda. Don’t be surprised, at the end of this week, to have heard much rhetoric, much crowing and much mocking. Don’t be surprised if both sides, blaming the other, keep the issue alive until January before doing any definitive work. It will be an interesting “media” week, but doubt that the Court decision will provide any all-sufficient ruling on the Affordable Care Act.